Excerpt: - - 1. assuming the genuineness of these letters, they would only show the love and passion which the wife bore towards the husband. 1 which is effectively rebutted by p. shanta 1975 ker lt 533. 8. it is well established that this presumption can be rebutted only in the manner contemplated by section 112 of the evidence act, namely, by proof of non-access for the spouses at any time, when the child could have been conceived. in a case where the spouses live not far away from each other, even if there is no love lost between the spouses, access cannot be ruled out. the child was born on 19-4-1977, namely, about 216 days after 12-9-1976, there was clearly access for the spouses on 12-9-1976, if not on the succeeding days;.....from service and reached his native place on or about 11-0-1976. on 12-9-1976 he went to the wife's house. on 16-2-1977 he filed o.p. no. 4 of 1977. before the munsiff, karunagappally under the travancore ezhava act for dissolution of marriage on the ground of adultery. the petition was dismissed as without jurisdiction and the revision petition is pending now in the high court. on 12-4-1977 the wife sent ext. d16- notice demanding maintenance for herself from the husband. on 19-4-1977 the child, namely the 2nd respondent herein was born.3. the wife would contend that after june 1975 and before september 1976, the husband used to come occasionally on leave and used to stay with her in her parents' house. this is not a material controversy in the case since p. w. 1 has admitted that.....

Judgment:ORDER

U.L. Bhat, J.

1. The respondents herein, mother and minor son obtained an order from the Judicial I Class Magistrate, Karunagappally, in M.C. No. 4 of 1978, directing the revision petitioner to pay them every month a sum of Rs. 50 and Rs. 25 respectively from the date of the order, under Section 125 of the Code of Criminal Procedure (for short the Code). This order is now challenged.

2. There are certain admitted facts in the case. The revision petitioner (C.P. W. 1) and the 1st respondent herein (P. W. 1) were lawfully married on 29-6-1974 at a time when C.P.W. 1 was employed at Ambala. They resided together for a few days in the husband's house. He left the place to rejoin duty on 2-7-1974 and before that, took his wife and left her at her parents' house. He came down on leave and the spouses lived together between April 1975 and June 1975. He retired from service and reached his native place on or about 11-0-1976. On 12-9-1976 he went to the wife's house. On 16-2-1977 he filed O.P. No. 4 of 1977. before the Munsiff, Karunagappally under the Travancore Ezhava Act for dissolution of marriage on the ground of adultery. The petition was dismissed as without jurisdiction and the revision petition is pending now in the High Court. On 12-4-1977 the wife sent Ext. D16- notice demanding maintenance for herself from the husband. On 19-4-1977 the child, namely the 2nd respondent herein was born.

3. The wife would contend that after June 1975 and before September 1976, the husband used to come occasionally on leave and used to stay with her in her parents' house. This is not a material controversy in the case since P. W. 1 has admitted that on 12-9-1976 when the husband visited her she was not pregnant. The parties are at variance as to what exactly took place on 12-9-1976 when the husband came to her parents' house. The wife would say that they stayed together and cohabited while the husband would deny it and contend that he was insulted on that day by the wife and her father and she refused to go with him to, his house.

4. It is the contention of the revision petitioner that in his absence at Nasik (from where he retired) the wife was living in adultery having promiscuous relationship with several persons and the child was born in such connection. He denied paternity of the child and contended that neither the mother nor the child are entitled to be maintained by him. On these matters there is only the interested testimony of P. W. 1 and C, P. W. 1. The trial court believed the evidence of P. W. 1 and on a presumption arising under Section 112 of the Indian Evidence Act, held that the 2nd respondent is the child of the revision petitioner. Accordingly, maintenance was ordered.

5. The learned Counsel for the revision petitioner contended before me that the letters Exts. D1 to D3 and D10 would show that the wife was feeling intensely the absence of male company and that would probabilise the contention that she was living in adultery. These letters were denied by P. W. 1. Assuming the genuineness of these letters, they would only show the love and passion which the wife bore towards the husband. The letters in no way would support the case of the husband that the wife must have been driven to have promiscuous relationship with other men. Regarding the allegation of adulterous life there is only the interested and hearsay testimony of C.P.W. 1 which is effectively rebutted by P.W. 1. Under the circumstances, the evidence of C.P.W. 1 could not be accepted without corroboration. The learned Magistrate was therefore right in holding that this allegation has not been made out by the husband,

6. The more serious contention relates to the paternity of the child. The marriage took place on 29-6-1974 and subsists even till this day. The child was born on 19-4-1977, that is during the subsistence of the marriage. Section 112 of the Evidence Act reads thus:

112. Birth during marriage conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Since it is admitted that the child was born during the continuance of a valid marriage between P.W. 1 and C.P.W. 1, it shall be conclusive proof that the child is the legitimate child of C.P.W. 1. This conclusive proof, of course, could be rebutted by C.P.W. 1 showing that the spouses had no access to each other at any time when the child could have been gotten.

7. Law, particularly law in India, Jeans in favour of presumption of legitimacy of a child born in lawful wedlock. This principle finds statutory recognition in Section 112 of the Evidence Act. The presumption is conclusive unless it is rebutted in the manner contemplated in the section. This special protection to status of legitimacy cannot be lightly repelled. It is based on the principle that 'he is the father whom the nuptials show to be so or the marriage indicates'. This presumption is the foundation of every man's birth and status. It is a sensible presumption of law and is the pivot on which rests the entire fabric of the society. The strength of this presumption has been emphasised by this Court in several decisions reported in Janamma v. Kuttappa Panickar : AIR1959Ker366 , Raghavan Pillai v. Gourikutty Arama 1959 Ker LT 945 : AIR 1960 Ker 119, Appu v. Danley 1963 Ker LT 1038 and Vasu v. Shanta 1975 Ker LT 533.

8. It is well established that this presumption can be rebutted only in the manner contemplated by Section 112 of the Evidence Act, namely, by proof of non-access for the spouses at any time, when the child could have been conceived. If once access is present or non-access is not proved, the presumption becomes irrebuttable. A mere assertion by the husband that he had no access is not sufficient. The evidence in support of non-access must be clear, distinct, satisfactory, cogent and conclusive. The presumption cannot be displaced and the contention of non-access accepted on a mere balance of probability. The standard of proof required is similar to the standard of proof required to establish the guilt of an accused in a criminal case. This strict approach of courts on this question is governed by considerations of public policy and the extraordinary solicitude shown by law to uphold legitimacy.

9. Access or non-access connotes only the existence or non-existence of opportunity for marital intercourse, the burden of proving which entirely rests upon the person disclaiming it. Even where it is shown that the wife is living in adultery, it is insufficient to prove non-access. In a case where the spouses live not far away from each other, even if there is no love lost between the spouses, access cannot be ruled out. Where the evidence in favour of non-access is not satisfactory, the presumption of legitimacy has to be called in aid by the court to hold that the child is legitimate. Non-access can be established by positive direct evidence or even by circumstantial evidence, provided it is of a cogent and conclusive nature. These principles are laid down in the decisions already referred to above in addition to the decisions reported in Mohammed Haneefa v. Pathummal Beevi 1972 Ker LT 512 and Rudrani v. Baby 1979 Ker LT 513 : 1979 Lab IC 415.

10. The question of access or non-access must be considered with reference to the time when the child could have been begotten. Though the normal period of gestation may vary between either side of nine months, no such assumption can be made for the purpose of Section 112 of the Evidence Act. As to when a child could have been conceived is a matter which may be decided on the facts and circumstances of each case and in the light of the common course of events and medical possibilities. In Assis v. Ayidru ILR (1974) 2 Ker 295, this Court proceeded on the basis that the conception could have taken place 222 days prior to the delivery. In the decision reported in Madhavan Sukumaran v. Prabhavathi ILR (1975) 1 Ker 222 this Court accepted that the conception could have taken place 209 days prior to the delivery. In Abdul Khader v. Kacha 1978 Ker LT (SN) 38 : Case No. 89 Crl RP 297 of 1977 this Court upheld the legitimacy of a child born within 216 days of marriage. This is on the basis that for the purposes of Section 125 of the Code, a broad view must be taken leaving the aggrieved party to have appropriate remedy at the hands of a competent civil court.

11. Let me now consider the facts and circumstances of this case, in the light of the principles referred to above. Admittedly the parties co-habited during the period April 1975 to June 1975. C.P.W. 1 retired from service and came down to his place on or about 11-9-1976. P.W. l's house is only 18 miles away from the house of her husband. It is the admitted case of both sides that on 12-9-1976 the husband visited the wife's house. There is a dispute as to what exactly took place on that occasion. According to C.P.W. 1 he was insulted by his wife and father-in-law and the wife was not prepared to go with him to his house and she was avoiding physical intimacy with him to hide the fact that she was already two months pregnant. P.W. 1 has definitely sworn that when her husband came to her house on 12-9-1976 she was not already pregnant and in fact on that day and succeeding days they co-habited in her house. Of course there is no corroborative evidence on either side. We are not here concerned with the question as to whether there was actual sexual intercourse between the spouses on 12-9-1976 or the immediately succeeding days.

The matter in issue is whether on 12-9-1976 or succeeding days there was non-access between the spouses. Far from there being evidence of non-access between the spouses, the evidence of C.P.W. 1 himself shows that on 12-9-1976 he actually went to the house of his wife. It may be noted that by that time the spouses had been separated for a long period of 14 months as is clear from the evidence of C.P.W. 1 which is corroborated by the contents of the letter Ext. D10. It is not unnatural to expect that the spouses would have been looking forward to co-habitation. It would only be natural if they had cohabited on that day and the succeeding days. Besides the interested testimony of C.P.W. 1 there is nothing else to show that on that day that the wife was already two months pregnant. The child was born on 19-4-1977, namely, about 216 days after 12-9-1976, There was clearly access for the spouses on 12-9-1976, if not on the succeeding days; for after all the husband was residing only a few miles away from the wife's house. It cannot be said that the child could not have been conceived 216 days prior to the date of delivery. That is not within the realm of impossibility; on the other hand, it is very much within the realm of possibility.

12. P.W. 1 when cross-examined definitely stated that the baby was a premature one and was not healthy and for about one month the child had to be protected very carefully. The rebuttal is provided by the evidence of C.P.W. 1 who deposed that the child at the time of delivery was a full-grown baby delivered after 10 months of pregnancy. Admittedly he did not even care to go and see the baby. That being so, no weight could be attached to his version. Under these circumstances, I find that the trial court was right in holding that by virtue of the presumption under Section 112 of the Evidence Act, it must be held that the 2nd respondent herein is the child of the revision petitioner for the purposes of this proceeding. It is not argued before me that the quantum awarded is unreasonable and excessive.

In the result, the order of the trial court is confirmed and the revision is dismissed.